A week before the 13th Berlin Biennale’s opening in June 2025, a social media account took to criticizing Biennale curator Zasha Colah’s contention, made in a recently published interview, that “there is no censorship in Germany”.[1] The social media response was a result of some activists’ and artists’ perception that the curator was claiming that there is no legally-instantiated censorship in Germany. Individuals experiencing suppression of their words, especially those finding themselves out of work or targeted for being critical of Israel’s ongoing destruction of life in Gaza, took issue with the statement. My intervention here is to defend Colah’s assertion about the distinction between legally-articulated censorship and a more amorphous political culture of fear, discipline, and obedience, not because of a semantic difference, but because there is a strategic need for clarity. In most liberal democracies, it is somewhat straightforward to take a state to court when they explicitly infringe on stated citizens’ civil and political rights (of course, citizens’ economic unfreedom under liberal capitalism remains impenetrable in this arrangement); it is less easy to fight an unspoken, silent target. Moreover, while this is a pressing issue in contemporary Germany, conceptual clarity on what we mean by “legal” and a caution about fetishizing the law, is an important lesson for the global left more broadly.
Although it seems the interpretation of Colah’s words was taken out of context, the social media response and discussion it prompted raises important reflection on what is happening in Germany today. For those unaware, Germany may well be the liberal democratic state most active in supressing speech condemning Israeli crimes against Palestinians. Although the Nationale Strategie gegen Antisemitismus und für jüdisches Leben(NASAS) – in English: National Strategy against Antisemitism and for Jewish Life – passed in November 2024, endorses a heightened attention to such speech, criticism of Israel has been suppressed in Germany for many years.[2] The German state, and many German citizens, believe that they have a unique duty to defend Jewish people globally and this necessitates a nearly uncritical defense of the State of Israel.[3] While there is a kernel of beauty in the idea of such a solidaristic commitment to antisemitism, it takes only a second more to realize how dangerous it is to unreflexively align one’s moral and national character with the interests of a state, especially one piloted by Benjamin Netanyahu’s right-wing Likud Party (one can imagine that a more appealing outcome of Germany’s past would be an unreflexive critique of genocide). But the NASAS resolution is not law, per se. And Article 5 of the German Constitution defends the right to freedom of speech. An activist dressed as Jesus Christ reading from the bible and the Grundgesetz at a recent Berlin protest was sure to remind us of that. And so, is the Biennale curator right in her contention that there is no “legal” censorship in Germany? I think, yes. And, is there censorship in Germany? Also, yes. And Colah says as much in the interview:
There is no censorship, I would say, in Germany. Not legally. The obedience is not related to the Constitution, but to something else which is illegal. For hate crimes or anti-semitism, there are already very good laws that are part of the criminal code, and on the other hand there’s a very abstract ambiguity in the way the IHRA definition of antisemitism is formulated. It exceeds what law can do. Law cannot put into writing something that is inexact, excessive or ambiguous. Obedience to something else, then.[4]
Colah is making the point that there is active suppression of speech, but that the reason may not be law, but obedience or something beyond “law”. Tucked into her statement is a suggestion that it may be wrong-headed to look to “illegality” as the source of the problem – or the solution; a concern I share. This debate about whether what is happening in Germany is legal or not cuts to a larger problem about how we think of “law”, a problem which is important to grapple with as we critique, demand, and transform public institutions to be more humane and just in Germany and everywhere. In short, we must not fetishize “law”.
Law, as I say in my work (and full disclosure that I am an artist presenting in the 13th Berlin Biennale, precisely because of my videos on this theme) is not a thing that is “there”, unmoving and fixed. Law is made up of politics, political culture (including its economic base), aesthetics, and more. It is flexible, malleable, and deeply culturally infused. This is common sense, I think, in a general way, but let me draw it out. A statute contains language – explicitly and implicitly – that gives wiggle room for interpretation and argument. Judicial decisions are outcomes of processes of consideration and justification (they are, as such, documents of contestable determinations, made from and for debating, at least within certain arenas). And almost all constitutional law, amidst all of its protection of rights, has written into it exceptions and ambiguities that allow for the ultimate protection of the state. This is what Carl Schmitt and, more recently, Giorgio Agamben, have told us. Emergency. National security. National interest, which is most often national economic interest. The amorphous language of the moment in Germany is staatsräson. Protection of Israel has become one in the same with the raison d’etat of Germany.[5] And so, the police, politicians, and other state actors, do not exactly need things to be definitely legal or illegal, because staatsräson gives them an ambiguous argument to rationalize their actions. But staatsräson can also (and sometimes does) find its limits in court. Facts brought before a particular judge on a particular day, although always necessarily retroactively adjudicated, can be found to be legally compelling, or not; in other words, they do or do not meet a requirement set by legal institutions. While there are some importantly shared requirements across legal institutions (so that there is a standard of reasonable expectations), even these decisions can fluctuate between different judges, different days, and different facts. Some judges will find that staatsräson was not a compelling enough reason to limit freedom of speech or freedom of assembly one day, and that it was on another day. Law does not appear as a static, pre-formed set of immoveable rules, and yet it is less amorphous than staatsräson. Indeed, whereas law must accord to some institutional precepts, the latter is more like police power. This distinction was well summarized by Walter Benjamin in 1921:
Unlike law, which acknowledges in the “decision” determined by place and time a metaphysical category that gives it a claim to critical evaluation, a consideration of the police institution encounters nothing essential at all. Its power is formless, like its nowhere tangible, all-pervasive, ghostly presence in the life of civilized states.[6]
And for critics of these institutions like me, Colah, and the social media respondents, the distinction between law and political culture must be simultaneously maintained (conceptually and logistically), yet also not overdrawn. Law and political culture are different, yet law is also not apart from political culture. Afterall, law requires obedience, narratives, concepts, police power, and a political culture that endorses its values. And so, with a political culture endorsing staatsräson as synonymous with unflinching support of Israel, a police force functioning like all police do (as an everyday power with enormous discretion and public legitimacy), and a largely obedient population, speech is suppressed in Germany largely not through law, but through everyday mutual and consented-to enforcement. Of course, those speaking out against Israel are targeted and seemingly in increasingly intense ways; but political culture in Germany (and also elsewhere) has shifted to normalize an uncritical endorsement of Israel’s actions as the only non-anti-Semitic position. And we must focus on this. For those that want things to change, the thing that must transform is political culture, not law.[7]At least for now. If/when the law itself is changed, then that, of course, is a new frontier for struggle.
In short: there will always be amorphous concepts written into law and regulation that function as umbrellas that states and hegemonic political culture can use to mobilize their own interests: national security, national interest, emergency. We need to have robust control over political culture that allows the left to sway the determinations of those concepts to more humane and just ends. Investing our hopes and fears in law and legality weds us to a reactionary position that mistakenly sees law as the primary key to social transformation.
Those that have been targeted because of their speech may claim my distinction is semantic or formalistic. Indeed, the social media account I cite above posted ten pages of examples of active suppression of criticism of Israel, including state-based defunding, police intimidation, and threats of deportation, all of which are documented.[8] And there are many other examples of universities, Stiftungs, and cities, cancelling events, invitations, and prizes.[9] Certainly, the state is central in all of this and must be resisted.[10] But in almost all of the cases, you will hear about ambiguities: how the police, for example, interrupted the Berlin Palestine Congress in 2024 and turned off the live stream, but cited anxieties about the possibility of hate speech and the need for translations. They did not – could not – cite a direct law that was being violated.[11]
How to resist this? There is no law or infringement to point to. The police can hide under cover of staatsräson, a difficult position to try and make a claim against in a court of law. And so, the point is not semantic, but strategic: it matters that censorship is happening via political culture and so our focus must lay there. We must not fetishize law as the source and solution to our problem (although it should not be ignored or dismissed either).
The activist version of Jesus Christ at the Berlin protest in May was correct to point to the discrepancy in the experience of German law: there is a right to freedom of expression and yet Germany is suppressing expression. But we must remember that law, because it is not a static, immoveable thing, can be filled up with political culture, including ambiguous concepts like staatsräson, which lends a rationale, but not a legal one (necessarily). But it can also not. Law does not appear as a miraculous image, fully-formed and wholly-constituted, authoritatively dictating clear and coherent lines of reasoning: it is not full, but it is not exactly empty either.
There is silence and silencing in Germany.[12] But the answer is not to look to law as demon or salve. To combat what is happening in Germany requires a political project that must be dedicated to struggles over collective values and norms; when oriented to solidarity, internationalism, and bravery, law and legal cases can also reflect these values. We must not absolve ourselves of this political struggle by turning to the fetishization of law. Colah’s incitement to “fox”, a theme inspiring the 13th Biennale, and to interrogate easy lines of distinction between legality and illegality should be taken up by those of us wondering what to do in the face of an increasingly reactionary world and the unsettling suppression of speech and dissent in Germany, made so by political culture, not law.
[1] Colah in “Restorative Laughter: An Interview with Zasha Colah” with Alison Hugill. Berlin Art Link. 23 May 2025: https://www.berlinartlink.com/2025/05/23/interview-zasha-colah-berlin-biennale-13-curator/.
[2] See Dische-Becker, Emily, Sami Khatib, and Jumana Manna. Palestine, Antisemitism, and Germany’s “Peaceful Crusade”. Protocols, Issue 8, 2020: https://prtcls.com/article/berlin-art-and-palestine-conversation/; and Kattenburg, David. “The dangers of advocating for Palestine in Germany”. Mondoweiss. 22 June 2022: https://mondoweiss.net/2022/06/the-dangers-of-advocating-for-palestine-in-germany/.
[3] In a speech to the Knesset in 2008, Angela Merkel forcefully aligned German’s staatsräson with the protection of Isael (although at the time she was underlining the importance of diplomatic solutions): “This historical responsibility of Germany is part of my country’s raison d’état. This means that, for me as German chancellor, Israel’s security is never negotiable.” Bundesregierung. 18 March 2008: https://www.bundesregierung.de/breg-de/service/newsletter-und-abos/bulletin/rede-von-bundeskanzlerin-dr-angela-merkel-796170. The sentiment is summarized on page 3 of the NASAS document: “because of the Shoah, the fight against antisemitism has special significance in the German context which must be considered in debates over other political contexts and examples of genocide. For this reason, the German responsibility to remember the Shoah and National Socialism and to fight antisemitism encompasses protection for Jews everywhere in the world and the security of the State of Israel as a component of Germany’s national ethos. This means that every attack on Israel’s right to exist must be opposed.” Bundesministerium des Innem. Accessed 8 June 2025. https://www.bmi.bund.de/SharedDocs/downloads/EN/publikationen/2023/BMI23001.pdf?__blob=publicationFile&v=7. But critics also point out that this moralism is cover for what is an economically convenient alliance for Germany. For more on the longer historical relationship between Germany and Israel and the path it secures to American interests, see Wolfgang Streek’s “A matter of state: The politics of German anti-anti-Semitism” (European Journal of Social Theory, 2024): https://journals.sagepub.com/doi/10.1177/13684310241300838 and Weiland Hoband, Green Planet Monitor, 17 August 2024: https://www.greenplanetmonitor.net/conflict/staatsrason/).
[4] Colah. Accessed 8 June 2025: https://www.berlinartlink.com/2025/05/23/interview-zasha-colah-berlin-biennale-13-curator/.
[5] This relation has been articulated by many German chancellors over the last 60 years, but its meaning has also shifted with political culture. See Merkel 2008 and Streek 2024, cited above.
[6] Benjamin, Walter. “Critique of Violence”. Reflections (1978), 287.
[7] Importantly, in order to transform political culture, we must be attentive to the political economy of staatsräson. As I noted earlier, while there is moral cover given to it, a more intensive look at its economic motivations and effects is required.
[8] See European Legal Support Centre (https://elsc.support/) and Index of Repression (https://forensic-architecture.org/investigation/the-index-of-repression).
[9] See, for example, the cases of James Bridle (https://artreview.com/james-bridle-schelling-architecture-award-the-denial-of-genocide-is-on-the-march-everywhere/), Nancy Fraser (https://jacobin.com/2024/04/nancy-fraser-germany-palestine-letter), Masha Gessen (https://www.youtube.com/watch?v=oHczC-xKIqo), and Ghassan Hage (https://braveneweurope.com/ghassan-hage-statement-regarding-my-sacking-from-the-max-planck-institute-of-social-anthropology-9-february-2024).
[10] Streek claims that this political culture is enabled by a willing media, amongst other powerful players, that create “a vast capillary substructure for state penetration into society, serviceable for communicating to the public what kind of society the state wants and needs to be installed” (Streek, Matter of State, 2024, 46).
[11] Weiland Hoband, Green Planet Monitor, 2024: https://www.greenplanetmonitor.net/conflict/staatsrason/. Of course, there is some law in all of this. The German Criminal Code (Strafgesetzbuch = StGB) explicitly forbids mass incitement to hatred (s. 130, Volksverhetzung), including denial of the holocaust (130(3)), and insult (s. 185). And it is this law that has landed some individuals before courts for statements that have been deemed “hate speech” in Germany, such as slogans like “from the river to the sea”. And, in 2017, Germany passed the Network Enforcement Act (Netzwerkdurchsetzungsgestz) which forced private companies to be more proactive and responsive to online complaints about hate speech or face hefty fines. This means that active individuals and organized collectives have enhanced power to shut down accounts through targeted complaint campaigns. While almost all states have restrictions on speech, Germany’s legal restrictions are strong and/but, as a result of the political culture there (for reasons explored above), are more readily drawn upon in the false equation of critique of Israel with antisemitism.
[12] For more, see Jumana Manna “The Embargo on Empathy” Hyperallergic 1 November 2023: https://hyperallergic.com/854193/the-embargo-on-empathy/.
I agree with most of what you write here (although I am not sure whether it amounts to a complete defence of Zasha Colah’s remarks). I do think there is something important missing, though, in your central strategic argument that “[f]or those that want things to change, the thing that must transform is political culture, not law.”
You repeatedly observe the centrality of the police in silencing (and brutalising) dissent in a Germany, where polls have shown a majority of the population do not support the position of the German government towards Israel. A similar pattern can be seen in many other countries. In this context, I think your argument implies too strongly that police are only politically and not also legally (dis)empowered. It is also possible to argue that police powers must be curtailed and (where they are already exceeded) officers must be held accountable – and these are legal strategies. You may consider these legal strategies unrealistic, considering the “nowhere tangible, all-pervasive, ghostly presence” of police today. Even so, I think these strategies deserve acknowledgement, even if only to eliminate them. I know anecdotally that many solidarity activists today consider the police, and not only the political culture, to be a key obstacle and enemy to their struggle.
Other than this comment, thank you for writing this article. I read it with great interest.